IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130013038 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Record of Nonjudicial Punishment (NJP) (DA Form 2627) be overturned/set aside and that he be restored to the pay grade of E-6 and retired in that pay grade.  

2.  The applicant states, in effect, that he had 19 years and 3 months in service when NJP was imposed against him for a positive urinalysis which resulted in his being reduced to the pay grade of E-5 and retired in that pay grade.  He goes on to state that he admits that he made a mistake but believes his service record and the fact that he served hardship tours should have made a difference and that he should have been allowed to retire in the pay grade of E-6.  However, his command unjustly gave him maximum punishment for the offense. 

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 9 September 1981.  He completed his training and continued to serve through a series of continuous reenlistments.

3.  On 4 June 1985, while serving in the pay grade of E-4 at Fort Bragg, North Carolina, NJP was imposed against the applicant for the wrongful use of marijuana.  The applicant did not appeal his punishment and the imposing commander directed that the DA Form 2627 be filed in the restricted section of his official records. 

4.  He was promoted to the pay grade of E-6 on 3 January 1993 and on 17 April 2001, while serving at Fort Campbell, Kentucky, NJP was imposed against him for the wrongful use of marijuana.  While the actual instrument (DA Form 2627) is not present in the available records, he was reduced to the pay grade of E-5 on 17 April 2001.

5.  On 30 September 2001 he was honorably retired in the pay grade of E-5 due to sufficient service for retirement.  He had served 20 years and 22 days of active service.

6.  Army Regulation 27-10 (Military Justice) provides that the decision to file DA Forms 2627 in the performance or restricted section of the AMHRR would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and is indicated in item 5 of the DA Form 2627. 

7.  Paragraph 3-28 (Setting Aside and Restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.  NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15.  In addition, the power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a separate addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

8.  Title 10, U.S. Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve (USAR) Control Group (Retired).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the punishment imposed for his wrongful use of marijuana in 2001 was unjust because the imposing commander did not take into consideration his overall service record and the fact that he was retiring has been noted and appears to lack merit. 

2.  The applicant was serving as a senior noncommissioned officer and as such was held to a much higher standard that when he received NJP as an E-4 for the same offense in 1985.  Additionally, the applicant admits that he committed the offense and as such the maximum punishment appears to have been called for under the circumstances.

3.  Additionally, it is also noted that the applicable regulations provided that individuals in the applicant’s circumstances be processed for separation for misconduct; however, there is no evidence in the available records to show that the commander initiated such action.

4.  In any event, the applicant has failed to show through the evidence of record and the evidence submitted with his application that the imposition of NJP was either in error or unjust and the evidence supports the fact that the applicant was properly retired in the pay grade of E-5, the grade in which he was serving at the time of his retirement.

5.  The evidence of record clearly indicates that the pay grade was the highest grade in which he satisfactorily served given that he used illegal drugs in the pay grade of E-6 knowing full-well what the consequences could be for a senior NCO.

6.  Accordingly, there appears to be no basis to grant his request to set aside his punishment and to be retired in the pay grade of E-6.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130013038





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ABCMR Record of Proceedings (cont)                                         AR20130013038



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